MASTER LICENSE GENERAL TERMS AND CONDITIONS
MASTER LICENSE GENERAL TERMS AND CONDITIONS
These Master License General Terms and Conditions (the “Agreement”) are incorporated by reference into, and shall apply to, any Order Form between the Skillsoft Corporation Affiliate identified in an Order Form issued hereunder (“Skillsoft”) and the customer named on such Order Form (“Customer”). Any capitalized term not defined herein shall be defined as set forth in such Order Form.
1.1 “Affiliate(s)” means and includes any entity that directly or indirectly controls, is controlled by, or is under common control with a party hereto, where "control" means the ownership of, or the power to vote, at least fifty-one percent (51%) of the voting stock, shares or interests of such entity provided such entity agrees in writing to be unconditionally bound by the terms and conditions of this Agreement.
1.2 “Authorized Audience” means the total number of Licensed Users (as set forth in an Order Form issued under this Agreement).
1.3 “Commitment Fee” shall have the meaning set forth in an Order Form.
1.4 “Confidential Information” means any non-public, confidential or proprietary information or data, whether communicated in writing, orally, or by any other method, and whether or not patentable or copyrightable, that is provided by one party (“Discloser”) to the other party (“Recipient”) under this Agreement and that is (i) marked as “confidential” or “proprietary” by the Discloser at the time of disclosure, or within thirty (30) days after disclosure in written form; or (ii) information which a reasonable person engaged in a similar transaction would consider to be confidential information; further provided that, if such information or data relates to the “Skillsoft Property” as defined in Section 1.10, then such information and data will be “Confidential Information” whether or not it has been marked as “confidential” or “proprietary” by the Discloser. Without limitation, Skillsoft’s Confidential Information will include the Skillsoft Products, web site architecture and content, its proprietary technology, or computer software in all versions and forms of expression, manuals, notes, Documentation, technical information, drawings, diagrams, or specifications. Customer’s Confidential Information will include the Customer Data.
1.5 “Customer Data” means any non-public, proprietary data, information, or material provided or submitted to Skillsoft by the Customer in connection with Customer’s use of the Skillsoft Products.
1.6 “Documentation” means all technical documentation, manuals, and specifications with respect to the Skillsoft Product(s) that are generally made available by Skillsoft with the Skillsoft Product(s). Skillsoft reserves the right to revise the Documentation from time to time, in its sole discretion.
1.7 “Intellectual Property Rights” means Skillsoft’s ownership rights and other proprietary rights and interests in and to all patents, patent rights, trademarks, service marks, copyrights, trade secrets, and other intellectual property and all other rights incorporated or embodied in, used to develop, or related to any of the foregoing.
1.8 “Licensed User” shall have the meaning set forth in the applicable Order Form.
1.9 “Skillsoft Product(s)” means the Skillsoft products and services, identified on Order Form(s) issued under this Agreement.
1.10 “Skillsoft Property” means the Skillsoft Product(s) and Skillsoft’s web site architecture and content thereof including, but not limited to, the Intellectual Property Rights inherent therein and/or appurtenant thereto and any copies made as authorized under this Agreement.
1.11 “Territory” shall have the meaning set forth in an Order Form, however, if any portion of the Territory is subject to an embargo or other legal restriction imposed on either party, that portion of the Territory shall be deemed excluded from the definition of “Territory”.
2. License Terms.
2.1 License Grant. Subject to the restrictions stated in this Agreement and any Order Form issued under this Agreement, Skillsoft grants to Customer, and Customer accepts, a non-exclusive, non-transferable license (without the right to sublicense) for the License Term (as defined in the applicable Order Form), to access and use and to allow the applicable Authorized Audience to access and use the Skillsoft Product(s) set forth therein in the Territory for Customer’s internal training purposes only. Customer shall limit the use of the Skillsoft Product(s) to the number of Licensed Users for whom Customer has paid the required license fees.
2.2 Reservation of Rights. All Skillsoft Products are the property of Skillsoft and/or its third party licensors and are protected by copyright and other laws relating to proprietary rights. Except for the limited license rights granted to Customer pursuant to this Section 2, the terms of this Agreement do not convey any ownership or other rights of any kind to Customer in or to the Skillsoft Property. Skillsoft and its licensors have and shall retain all right, title, and interest in and to the Skillsoft Property. Skillsoft reserves all rights not expressly granted to Customer herein. Further, Customer shall keep the Skillsoft Property free and clear of all claims, security interests, liens, and encumbrances.
2.3 Customer Restrictions. Except as may otherwise be permitted in this Agreement, Customer shall not (a) reproduce, publish, display, distribute, sell, sublicense, transfer, rent, lease, broadcast, timeshare, loan, disclose, or otherwise make available the Skillsoft Property, or any part thereof, to any third party; (b) reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from the Skillsoft Property, or any part thereof; (c) modify, translate, adapt, alter, or create derivative works (as defined under the United States copyright laws) based upon the Skillsoft Property or any part thereof; (d) remove any proprietary notices, labels, trademarks, or service marks on any Skillsoft Property; (e) merge the Skillsoft Property, or any component thereof, with another program (unless otherwise authorized pursuant to a specific deployment method identified in an Order Form); (f) use the Skillsoft Property, or any component thereof, for any purposes other than those explicitly stated in this Agreement; (g) have any right to any source code for the Skillsoft Property (h) permit any party not specifically licensed herein to use the Skillsoft Property; or (i) use download functionality enhancement tools. Customer further agrees that Customer is solely responsible for the content of all visual, written, or audible communications made by Customer using the Skillsoft Product(s). Although Skillsoft is not responsible for any such communications, Skillsoft may delete any such communications at any time should Skillsoft become aware of a communication that is unlawful, would constitute a criminal offense, or give rise to civil liability. In the event of the foregoing, Skillsoft will provide prompt notice of such deletion to Customer, which notice may be provided electronically.
2.4 Customer’s Responsibility for Allowing Access. Customer acknowledges that all of the restrictions on access to and use of the Skillsoft Property contained in this Section 2 and elsewhere in this Agreement apply to the Authorized Audience. Customer will take all necessary steps to ensure compliance of the Authorized Audience therewith, and Customer will be liable to, and indemnify, Skillsoft for any violations of this Agreement by any Affiliate, employee, or agent of Customer whether or not such individual was a Licensed User.
2.5 Customer Obligations. Customer shall: (a) not swap or share the login identifications or passwords (“Logins”) used to access the Skillsoft Products and associated with any Licensed User under any circumstance; (b) not use the provided storage to store any information that is extraneous to or unnecessary for the operation or legitimate use of the Skillsoft Product(s); (c) not use the user-defined fields to store sensitive personally identifiable information; (d) notify Skillsoft immediately of any unauthorized use of any Logins used to access the Skillsoft Products or any other known or suspected breach of security; (e) report to Skillsoft immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by Customer to be infringing or unlawful; (f) notify Skillsoft promptly if the Authorized Audience licensed to use any Skillsoft Products set forth in an Order Form is exceeded; and (g) pursuant to Section 2.8, promptly (i) execute any amendments or Order Forms necessary to memorialize such excess and (ii) pay fees associated with such excess.
2.6 Usage Records. Skillsoft shall have the right during the License Term and for six (6) months after the termination or expiration of this Agreement to examine Skillsoft’s records in order to audit Customer’s access to and usage of the Skillsoft Product(s) to verify compliance with this Agreement.
2.7 Usage Reports. If the Skillsoft Products licensed herein are deployed outside of Skillsoft’s learner management systems (“LMS”), Customer agrees that, if requested by Skillsoft, Customer will provide a usage report to Skillsoft (“Usage Report”). The Usage Report shall include details of all users of the Skillsoft Products. The purpose of the Usage Report shall be to show the number of users that accessed the Skillsoft Products in the preceding month.
2.8 Overages. If any Usage Report or audit reveals that Customer’s use of the Skillsoft Products exceeds the permitted Licensed Users for such product, then Skillsoft shall notify Customer in writing of such excess (an “Overage”). Customer will promptly execute any amendments or Order Forms necessary to memorialize such excess. Customer shall pay Skillsoft for such Overage in accordance with the payment terms set forth in Section 4.1.
2.9 Updates. During the License Term, Customer shall receive any corrections, enhancements, or other modifications as made commercially available to all Skillsoft customers licensing the same Skillsoft Products.
3. Term; Termination; Effects of Termination.
3.1 Term. This Agreement shall commence on the Effective Date set forth on page one of this Agreement and will expire on the furthermost End Date set forth in an Order Form issued under this Agreement, unless terminated earlier pursuant to this Section 3.
3.2 Termination of Agreement. Either party may cancel this Agreement and/or an Order Form issued under this Agreement (a) upon written notice to the other party, if the other party commits a material breach which it fails to cure within thirty (30) days of receipt of written notice of such breach, or which by the nature of the breach cannot be cured within such thirty (30) day period; or (b) immediately if the other party has a receiver appointed, or makes an assignment for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable bankruptcy laws.
3.3 Skillsoft LMS Shut Down and Return/Deletion of Customer Data. Effective thirty (30) days after the termination or expiration of this Agreement, Skillsoft shall have the right to shut down any and all Customer-specific Skillsoft LMS site(s). If Customer requests Customer Data within 30 days of such termination or expiration, Skillsoft will make available to Customer an electronic copy of the Customer Data in its then-current format. Any additional formatting or other work involving Customer Data shall be subject to an additional fee at Skillsoft’s then-current rates. After such 30-day period, Skillsoft shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, in accordance with Skillsoft’s internal policies. Skillsoft will not provide copies or extracts of Customer Data unless all amounts due and owing, including any Commitment Fees, Overage fees, or any other fee or charge associated with Customer’s use of the Skillsoft Products and/or services, have been paid by Customer.
3.4 Disabling a Licensed User. Notwithstanding the foregoing, in order to protect the intellectual property rights of Skillsoft and its licensors, Skillsoft may disable any individual’s access to the Skillsoft Product(s) immediately if, in Skillsoft’s sole discretion, such individual’s use of the Skillsoft Product(s) violates the terms and conditions of this Agreement or any Order Form issued under this Agreement.
3.5 Effects of Termination. Upon termination or expiration of this Agreement or any exchange or update of the Skillsoft Product(s), Customer will delete any copies of the Skillsoft Property from its computer(s) or server(s) and destroy or return to Skillsoft all hard copies of the same. Customer agrees that, if requested by Skillsoft, Customer will provide Skillsoft with a written statement, signed by an authorized Customer representative, which certifies its compliance with the foregoing obligations. If Skillsoft terminates this Agreement pursuant to subsection 3.2(a) or 3.2(b) above, then Skillsoft reserves the right to pursue any and all rights and remedies available to it under applicable law, including, but not limited to, collection of the Commitment Fee. If Customer terminates this Agreement pursuant to subsection 3.2(a) above, then Skillsoft shall return any amount previously paid by Customer for the period after the effective date of termination, but shall be entitled to receive and retain all amounts attributed to the period before the effective date of termination.
3.6 Survival. The rights and obligations of the parties which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect.
4. Payment Terms.
4.1 Payment. Customer agrees to pay Skillsoft the License Fee(s) set forth in an Order Form issued under this Agreement. The License Fee(s) shall be due and payable annually in advance within thirty (30) days after the invoice date. Except as otherwise set forth herein, all amounts received by Skillsoft pursuant to this Section 4 shall be non-refundable. In the event that Customer designates another entity to receive invoices on its behalf, Customer shall remain liable to Skillsoft for the timely payment of said invoices. Such designation may be made by written notice to Skillsoft.
4.2 Late Payment. Customer shall reimburse Skillsoft upon demand for all reasonable costs incurred (including attorneys’ fees) in collecting past due amounts owed by Customer, and Skillsoft reserves the right to charge interest of up to one and one-half percent (1.5%) per month, or the maximum charge permitted under applicable laws, on the past due amounts that are the subject of such collections activities. For the avoidance of doubt, Skillsoft shall not bring an action to collect any past due fee that is the subject of a good faith dispute between the parties.
4.3 Taxes. The Commitment Fee and any other amounts payable to Skillsoft hereunder are exclusive of taxes. Skillsoft shall be responsible for all taxes payable in connection with its provision of the Skillsoft Product(s) to Customer and on its income therefrom. Skillsoft shall invoice Customer and Customer shall be responsible for all sales, use, excise, service, or similar taxes payable in connection with its receipt and use of the Skillsoft Product(s) under this Agreement. Notwithstanding the foregoing, prior to Customer’s execution of this Agreement Customer may provide Skillsoft with a valid tax exemption certificate or direct pay permit acceptable to the applicable taxing authorities to allow the issuance of invoices to Customer without the applicable tax. In the event that Customer is legally required to withhold income tax from any payments to Skillsoft under this Agreement, Skillsoft shall provide Customer with a valid tax residency certification as required under any double taxation treaty then in effect to reduce or eliminate the income tax to be withheld from these payments. Customer shall withhold tax at the applicable rate in effect as of the date of payment and shall provide to Skillsoft on a timely basis documentation evidencing payment of the tax withheld to the applicable tax authority.
5.1 Uptime. Skillsoft warrants that access to the Skillsoft Products shall be available twenty-four (24) hours per day seven (7) days a week, with Skillsoft’s internet service provider guaranteeing 99.5% uptime, calculated on a monthly basis during the term of this Agreement, excluding scheduled maintenance.
5.2 Substantial Conformance. Skillsoft warrants that it will provide the Skillsoft Product(s) in accordance with industry standard practices. During the term of an applicable Order Form executed under this Agreement the Skillsoft Product(s) will substantially conform to the Documentation. In the event that a material defect is identified by Customer, and confirmed by Skillsoft, then Skillsoft, at its sole option and expense may: (i) make reasonable efforts to correct defects in the Skillsoft Product(s) that are documented by Customer, and confirmed by Skillsoft; or (ii) replace the defective Skillsoft Product(s); or (iii) if Skillsoft deems neither of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Skillsoft Product(s), accept return of the defective Skillsoft Product(s) and grant Customer a pro-rated credit of the unused portion of the license fees paid with respect the applicable Skillsoft Product(s). Except as set forth in the preceding sentence, Skillsoft’s obligation of liability hereunder shall be to replace or make reasonable efforts to take corrective action with regards to such defect in a single copy of the defective Skillsoft Product(s), however, Skillsoft shall have no obligation to correct or replace copies of any Skillsoft Product(s) that Customer has made in accordance with the provisions of this Agreement. The remedy stated in this Section 5.2 shall be Skillsoft’s entire obligation and Customer’s sole and exclusive remedy for breach of warranty hereunder and shall be in lieu of any other remedy available to Customer at law or in equity. This warranty shall not apply if the Skillsoft product(s) have been (a) altered, modified, or enhanced by any party other than Skillsoft; (b) subjected to misuse, negligence, or computer or electrical malfunction; or (c) used, adjusted, installed, or operated other than in accordance with the Documentation, or as authorized in writing by Skillsoft. Furthermore, no warranties shall apply in the event of an uncured breach of this Agreement by Customer for which notice of breach has been given by Skillsoft hereunder.
5.3 Customer Content. Notwithstanding the provisions in Sections 5.1 and 5.2 above, in no event shall Skillsoft provide any warranties or technical support to Customer for (i) any Customer-provided courses or other property, information, software, documentation, or materials provided to Skillsoft by Customer or that Skillsoft hosts on, or provides via, any Skillsoft Product(s) as requested by Customer for Customer’s use (collectively, “Customer Content”); or (ii) third party content licensed by Customer from such third party and accessed from Skillsoft’s platform via an API or other linking tool (collectively with Customer Content, “Non-Skillsoft Content”). Skillsoft makes no warranties with respect to any such Non-Skillsoft Content and it expressly disclaims all liability for such Non-Skillsoft Content, including, without limitation, any failure of such Non-Skillsoft Content to meet applicable accessibility standards.
5.4 DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED. SKILLSOFT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ABSENCE OF SECURITY INTEREST, LIEN, OR ENCUMBRANCE. SPECIFICALLY, AND NOT IN LIMITATION OF THE FOREGOING, SKILLSOFT DOES NOT WARRANT THAT ANY SKILLSOFT PRODUCT(S) WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE OPERATION OF ANY SKILLSOFT PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SKILLSOFT PRODUCT(S) WILL BE CORRECTED. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN.
6.1 By Skillsoft. Skillsoft, at its own expense, shall indemnify, defend, and hold Customer harmless from and against all claims, damages or other liabilities asserted by, or payable to, a third party that a Skillsoft Product(s) infringe(s) a patent, copyright, trademark, or trade secret of said third party in the Territory (each, a “Product Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 6.1, (i) Skillsoft shall be notified promptly in writing by Customer of any Product Claim of which it is aware for which indemnification may be available; (ii) Skillsoft shall have the sole control of the defense of any such Product Claim and of all negotiations for its settlement or compromise, provided that such settlement or compromise does not require the admission of liability, fault, or wrongful act or conduct on the part of Customer; and (iii) Customer shall cooperate reasonably with Skillsoft in the defense, settlement, or compromise of such Product Claim at Skillsoft's expense. Skillsoft will not be responsible for the expenses, including attorney’s fees, of Customer incurred after Skillsoft assumes defense of a Product Claim, but Customer may participate therein and retain counsel at its own expense. Skillsoft will not be responsible for any settlement or compromise made by Customer without Skillsoft’s written consent. Skillsoft will not consent to the entry of any judgment or enter into any settlement or compromise affecting Customer, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Customer, and/or otherwise involves more than the payment of money by Skillsoft, without the prior written consent of Customer.
6.2 Remedies. If Customer’s use of any Skillsoft Product(s) is enjoined, or if in Skillsoft’s sole judgment is likely to be enjoined, Skillsoft may, at its sole option and expense, and as a complete remedy to Customer, either (a) substitute equivalent non-infringing software for the infringing item; (b) modify the infringing item so that it no longer infringes but remains functionally equivalent; (c) obtain for Customer the right to continue using such item; or (d) if Skillsoft deems none of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Skillsoft Product(s), accept return of the infringing Skillsoft Product(s), and grant Customer a pro-rated credit of the unused portion of the Commitment Fee paid with respect the applicable Skillsoft Product(s).
6.3 Exclusions. The foregoing provisions of this Section 6 notwithstanding, Skillsoft shall not have any liability to Customer under this Section 6 to the extent that any infringement or claim thereof is based upon (i) Non-Skillsoft Content; (ii) use of the Skillsoft Product(s) in combination with any equipment or software not supplied hereunder where the Skillsoft Product(s) would not otherwise be infringing; (iii) compliance with designs, plans, or specifications provided by Customer; (iv) use of any Skillsoft Product in an application or environment for which it was not designed, not provided for in the Documentation, or not contemplated under this Agreement; (v) use of other than the most recent release of the Skillsoft Product(s) provided to Customer by Skillsoft; (vi) use of the Skillsoft Product(s) in breach of this Agreement; and/or (vii) any claims of infringement in which Customer or any Affiliate of Customer has an interest or license in the property allegedly infringed upon by the applicable Skillsoft Product(s).
6.4 By Customer. Customer shall indemnify, defend, and hold Skillsoft harmless from and against all claims, damages, or other liabilities asserted by or payable to a third party arising out of or in connection with any Customer Content (each, a “Customer Content Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 6.4 (i) Skillsoft will promptly notify Customer in writing after receiving notice of any Customer Content Claim; (ii) Customer shall have the sole control of the defense of any action on such Customer Content Claim and all negotiations for its settlement or compromise; and (iii) Skillsoft shall cooperate reasonably with Customer in the defense, settlement, or compromise of such Customer Content Claim at Customer’s expense. Customer will not be responsible for the expenses, including attorney’s fees, of Skillsoft incurred after Customer assumes defense of a Customer Content Claim, but Skillsoft may participate therein and retain counsel at its own expense. Customer will not be responsible for any settlement or compromise of any Customer Content Claim made by Skillsoft without Customer’s written consent. Customer will not consent to the entry of any judgment or enter into any settlement or compromise affecting Skillsoft, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Skillsoft, and/or otherwise involves more than the payment of money by Customer, without the prior written consent of Skillsoft.
6.5 Mutual Indemnities. Each party hereby agrees to indemnify and hold harmless the other together with its officers, directors, employees, agents, and Affiliates from and against any and all third party claims, actions, demands, liabilities, penalties, fees, costs, or expenses, including reasonable attorneys’ fees, arising out of or in connection with the indemnifying party’s (i) breach of its obligations set forth in Section 8; or (ii) gross negligence or willful misconduct.
7. Limitation of Liability.
7.1 Fraud, Death, or Personal Injury. Neither party excludes or limits its liability to the other for fraud, for death or personal injury resulting from its negligence, or for any other liability which cannot be excluded or limited by law.
7.2 Non-Direct Damages. Neither party shall be liable for any consequential, collateral, special, incidental, indirect, exemplary, or punitive damages, including, without limitation, loss of profits or revenue, loss of use, damage, loss or destruction of data, costs of cover, or costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or its subject matter. These limitations will apply even if a party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.
7.3 Total Liability. In no event shall either party’s aggregate liability for any claims arising in a given contract year (whether in contract, tort, or otherwise, and whether arising under this Agreement or arising out of or resulting from Customer’s use of any Skillsoft Product(s)) exceed the License Fees paid or payable under this Agreement with respect to said contract year.
7.4 Exceptions. The limitations of liability set forth in Sections 7.2 and 7.3 above shall not apply to (i) the parties’ respective indemnification obligations under this Agreement; (ii) damages arising out of or in connection with Customer’s breach of Section 2.3 of this Agreement; or (iii) any damages arising out of or in connection with Customer’s misappropriation of Skillsoft’s Intellectual Property Rights.
8. Compliance with Laws.
8.1 Compliance with Law. Each Party shall comply with all applicable laws and regulations in connection with its provisioning, downloading, and/or use of the Skillsoft Property and in performing its obligations hereunder, including, but not limited to, export controls and embargo restrictions under the laws and regulations of the United States ("U.S.") and the European Union (“EU”), including without limitation export controls administered by the U.S. Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control, or other U.S. agencies.
8.2 Prohibited Jurisdictions. Customer acknowledges and further agrees that the Skillsoft Property shall not be used in, and none of the underlying information, software, or technology may be downloaded, transferred, or otherwise exported or re-exported to, any country to which the U.S. and/or the EU maintains an embargo applicable to the Skillsoft Property; nor shall Customer share any Skillsoft Property with a national or resident of any such country, or with any person or entity on the U.S. Department of the Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List, Unverified List, or Entity List, or who is listed in General Order No. 3 as set forth in Title 15 of the U.S. Code of Federal Regulations, Part 736, Supplement No. 1 “Designated National”. The lists of Embargoed Countries and Designated Nationals are subject to change without notice.
8.3 Remedy. Notwithstanding any other provision of this Agreement, Customer agrees that Skillsoft, in its sole discretion, may take such actions as it deems necessary to remedy a breach of any provision in this Section 8.
9.1 Non-Disclosure Obligation. All Confidential Information will be maintained in confidence by the Recipient using at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, and will not be disclosed to a third party or used for any purposes except as set forth in this Agreement. The obligations described in this Section 9.1 will not apply to any Confidential Information that:
a. is known by the Recipient at the time of receipt, and not through a prior disclosure by the Discloser, as documented by the Recipient’s business records;
b. is known to the public before its receipt from the Discloser, or thereafter becomes known to the public through no breach of this Agreement by the Recipient;
c. is subsequently disclosed to the Recipient by a third party who is not under an obligation of confidentiality to the Discloser; or
d. is developed by the Recipient independently of Confidential Information received from the Discloser, as documented by the Recipient’s business records.
9.2 Certain Permitted Disclosures. Notwithstanding the obligations of confidentiality and non-use set forth in Section 9.1, the Recipient may use and disclose Confidential Information as may be reasonably required by it in order for the Recipient to perform its obligations and to exercise its rights under this Agreement. The Recipient may disclose Confidential Information: (a) to its employees, directors, agents, consultants, advisors, or other third parties for the performance of its obligations and exercise of its rights hereunder, provided such entities are under an obligation of confidentiality with respect to such information that is no less stringent than those of this Section 9; and (b) to the extent necessary to comply with a court order, or as otherwise required by law or by a regulatory agency or government body, provided that the Recipient shall first give notice to the Discloser (so long as such notice is not prohibited by law) and assist the Discloser, at the Discloser’s expense, to block such disclosure and/or obtain a protective order to protect the confidentiality of such information. If the Recipient is nevertheless required to make such disclosure, the Recipient agrees to disclose only that portion of the Confidential Information that it is legally required to disclose, provided, however, the Recipient shall continue to be bound by the confidentiality and non-use provisions of Section 9.1 with respect to any Confidential Information disclosed by the Recipient pursuant to this Section 9.2. The Recipient shall immediately notify the Discloser of any actual or suspected unauthorized disclosure of Confidential Information.
9.3 Injunctive Relief. The parties agree that a breach or threatened breach of this Section 9 would result in irreparable harm to the non-breaching party, which breach would be inadequately compensated by money damages. Accordingly, the non-breaching party may, in addition to any other legal remedies that may be available, seek injunctive relief, including without limitation preliminary injunctive relief, prohibiting or enjoining any such actual or threatened breach of this Section 9. The parties agree that the non-breaching party will not be required to post a bond in seeking such injunctive relief.
10. General Provisions.
10.1 Force Majeure. With the exception of payment obligations, neither party shall be liable to the other for any loss or damage resulting from any delay or failure to perform its obligations hereunder, in any respect, if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, inability to secure materials and transportation facilities, riots, acts of war, epidemics or pandemics, terrorist acts, governmental actions, floods, earthquakes, natural disasters, fires, and explosions.
10.2 Affiliates. Any Affiliate of Customer may license products and services from Skillsoft, or an Affiliate of Skillsoft, subject to the terms and conditions of this Agreement; further provided, that such license shall be set forth in a separate Order Form between Skillsoft, or its applicable Affiliate, and the applicable Affiliate of Customer. For the avoidance of doubt, Customer may not transfer its licenses to any Skillsoft Products issued under this Agreement to any Affiliate of Customer without the prior express written consent of Skillsoft or its applicable Affiliate.
10.3 Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, to an Affiliate or in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction; provided that the assignee: (i) is not a direct competitor of the non-assigning party; (ii) provides prompt written notice of such assignment to the non-assigning party, including any updates to the Notices provision below; (iii) is capable of fully performing the obligations of the assignor under this Agreement; and (iv) agrees to be bound by the terms and conditions of this Agreement. Any purported transfer or assignment in violation of this Section 10.3 shall be null and void and of no force and effect.
10.4 Successors. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.5 Notices. All notices given hereunder shall be in writing, and shall be deemed to be duly given if delivered by any of the following methods: (i) by personal delivery; (ii) by electronic mail or facsimile, with a confirmation copy sent by first class mail; (iii) by registered or certified mail, postage prepaid, return receipt requested; or (iv) by a nationally recognized express courier. A notice sent by personal delivery, registered or certified mail, or express courier shall be deemed given on the date of receipt or refusal of receipt. A notice sent by electronic mail or facsimile shall be deemed given on the date of electronic confirmation of receipt. Notices shall be sent to the respective addresses of each party as set forth in the applicable Order Form.
10.6 Prevailing Party. In any litigation, arbitration, or other proceeding arising out of or related to this Agreement, the prevailing party shall be entitled to receive its reasonable attorneys’ fees, and its reasonable costs and expenses.
10.7 Severability. If any provision herein is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall, to the extent of such invalidity or unenforceability, be severed. All other provisions shall continue in full force and effect and shall be construed so as to best effectuate the intention of the parties in executing it.
10.8 Federal Acquisition Regulations. The Skillsoft Products licensed under this Agreement are Commercial Computer Software under United States Federal Government Acquisition Regulations and agency supplements thereto. The Skillsoft Products are provided to the federal government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial software developed at private expense and not in the public domain. The use, duplication, or disclosure by the government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software at DFAR 252 227-7013. Unless exempt, Customer and Skillsoft shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. If applicable, the Customer and Skillsoft shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
10.9 No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and is not intended to convey any rights or benefits to any third parties, nor will this Agreement be interpreted to convey any benefits or rights to any person except the parties hereto.
10.10 Governing Law and Venue. This Agreement and all disputes hereunder, and the rights and obligations of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware without reference to its conflicts or choice of law provisions. All claims, disputes, and/or lawsuits in connection with this Agreement shall be brought in the courts of the State of Delaware, and each party to this Agreement hereby irrevocably submits to the jurisdiction and venue of such courts.
10.11 Waiver. The failure or delay by either party in exercising any right or remedy hereunder shall not operate as a waiver of any such right or remedy. Waiver by either party of any default shall not waive any prior, concurrent, or subsequent defaults by the other party.
10.12 Counterparts, Electronic Signatures. This Agreement may be executed in counterpart(s), all of which shall be original, signed documents, and which together shall constitute a single agreement. In addition, the parties expressly agree to the use of electronic signatures to execute this Agreement, any Order Form, and/or any amendment to the foregoing.
10.13 Publicity. Skillsoft shall not use Customer’s name or logo in any list or other promotional materials (including, without limitation, online or print-based quotes, case studies, and video testimonials) without the advance authorization from Customer, which will not be unreasonably delayed, conditioned, or withheld. Except as set forth above, there shall be no public announcement of this Agreement or the relationship between the parties without mutual review and approval by both parties, except as part of required governmental filings, SEC filings, quarterly earnings announcements, and/or financial presentations.
10.14 Headings. The descriptive headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Each of the recitals set forth at the beginning of this Agreement is incorporated into this Agreement and is binding upon the parties hereto.
10.15 Relationship of the Parties. The relationship of Skillsoft and Customer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that, except as specifically provided in this Agreement, each party does not grant the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of it, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of it, or to transfer, release, or waive any right, title, or interest of it.
10.16 Entire Agreement; Amendment. This Agreement and any and all Order Forms issued hereunder constitute the entire understanding and agreement between the parties with respect to the subject matter thereof and supersede all prior and contemporaneous proposals, agreements, and/or nondisclosure agreements, as well as representations between them, whether written or oral. In the event of any conflict between the provisions of this Agreement and any Order Form(s) issued hereunder, the Order Form(s) shall govern, provided, however, that any proposed amendment to any specific provision of these General Terms and Conditions, whether by Order Form or other written instrument, shall only be effective to modify such provision if it identifies the provision by its section reference and is signed by an authorized representative of Customer and a representative of Skillsoft at the Senior Manager, Contracts & Revenue, level or higher, or such person’s designee. Any terms or conditions contained in any Customer purchase orders or other Customer documents shall be void and of no force or effect, even if such document is executed by both parties after the Effective Date. Notwithstanding the foregoing, Customer may change its bill to and/or ship to address upon written notice to Skillsoft.
END OF AGREEMENT